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Debating Conflicts: Medicine, Commerce, and Contrasting Ethical Orders

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Debating Conflicts: Medicine, Commerce, and Contrasting Ethical Orders DEBATING CONFLICTS: MEDICINE, COMMERCE, AND CONTRASTING ETHICAL ORDERS Janet L. Dolgin* I. INTRODUCTION Every important social debate is grounded in a seminal development in the history of ideas, and can be understood in proportion as the relevant development is understood. The debate of concern to this Article—that involving the appropriate relationship between physicians and the pharmaceutical industry—is grounded in the development known to historians as the shift in modern Western culture from status to contract. 1 Part II of this Article introduces that shift through reference to the transformation of the family in the last decades of the twentieth century. It then describes the consequences of the shift within the world of health care. It briefly reviews the social history of medicine since the middle of the twentieth century and describes that history in light of the shift from status to contract. Then Part III focuses on one aspect of the broad shift by examining contrasting understandings among physicians of the parameters of medicine. In particular, Part III compares an ethical order that continues to reflect traditional patterns in directing physicians’ conduct with an ethical order firmly committed to the values of the marketplace. Physicians’ contrasting attitudes toward links with industry, and more specifically, toward rules of disclosure as a potential antidote to bias, are illustrative. Finally, in conclusion, the Article suggests that the depth of the ideological 2 divide among physicians, * Jack and Freda Dicker Distinguished Professor of Health Care Law, Hofstra Law School. B.A. (philosophy), Barnard College; M.A., Ph.D. (anthropology), Princeton University; J.D., Yale Law School. I am grateful to Cindie Leigh, Reference Librarian, Hofstra Law School, for generous assistance with bibliographic materials; to Michael Scarpa (Hofstra Law School, class of 2008) for research help; and to Dr. Samuel Packer for sharing dialogue and research materials. Finally, I thank Hofstra University, the Hofstra Cultural Center, and the Hofstra Law School for making possible the conference out of which this Article developed. 1. See HENRY MAINE , ANCIENT LAW 98-100 (J.M. Dent & Sons 1977) (1861). 2. By “ideology” and “ideological” this Article refers to a set of basic forms through which people understand their world and act in that world. The term is not used here to refer to a system of false or political beliefs. The use of ideology reflects that of the French anthropologist, Louis Dumont. Dumont wrote: Our definition of ideology thus rests on a distinction that is not a distinction of matter but one of point of view. We do not take as ideological what is left out when everything true, rational, or scientific has been preempted. We take everything that is socially thought, believed, acted upon, on the assumption that it is a living whole, the 705 706 HOFSTRA LAW REVIEW [Vol. 35:705 apparent in discourse about links with industry and, more generally, in discourse about the profession’s self-identity and scope, may augur a dramatic division of the medical profession into two essentially distinct professional groups. 3 II. FROM STATUS TO CONTRACT : THE CONCRETIZATION OF AN IDEA The terms central to an understanding of the shift from status to contract were defined over a century ago by the British social theorist, Sir Henry Maine. Maine’s vision of a social world defined through relationships of “status” posits a system of values grounded in the nature of things; 4 in that world, the values are seen as immutable and as providing the only acceptable guide to social relationships. In sharp contrast, Maine’s notion of “contract” reflects the conviction that all systems of value are grounded in the preferences of particular individuals, and should therefore be shaped and reshaped following individual choice. 5 Maine’s understanding of status further describes a social universe that insists that traditional institutions be preserved, in significant part by insisting that individuals subordinate their needs and desires to the needs and desires of traditional communities, and thus as a matter of principle, restrict individual autonomy. 6 Contract insists, as a matter of principle, that the needs and desires of the autonomous individual be the primary arbiter of social institutions. 7 It further insists that those needs and desires be established and re-established to reflect the perceived imperatives of autonomy—and that the rules governing their shifting configurations be those that govern transactions in the marketplace. 8 In particular, Maine distinguished between those aspects of social life defined through “family dependency” (and grounded in relations of status) from those defined through “individual obligation” (contract). 9 In Maine’s view these domains of social life were not in balance. Rather over time, the domain of contract had increasingly been encompassing that of status. interrelatedness and interdependence of whose parts would be blocked out by the a priori introduction of our current dichotomies. LOUIS DUMONT , FROM MANDEVILLE TO MARX : THE GENESIS AND TRIUMPH OF ECONOMIC IDEOLOGY 22 (1977). 3. See infra Part III.C.1.c. 4. See infra notes 9-10 and accompanying text. 5. See infra notes 7-10 and accompanying text. 6. MAINE , supra note 1, at 98-100. 7. See id. 8. See id. at 99-100. 9. Id. at 98-100. 2006] MEDICINE, COMMERCE, AND CONTRASTING ETHICAL ORDERS 707 The Individual is steadily substituted for the Family, as the unit of which civil laws take account. The advance has been accomplished by varying rates of celerity . But whatever its pace, the change has not been subject to reaction or recoil . Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is Contract. All the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. If then we employ Status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may see that the movement of the progressive societies has hitherto been a movement from Status to Contract .10 Maine’s depiction is more useful in suggesting ideological perspectives than it is useful as history. 11 During most of the nineteenth and twentieth centuries, for instance, everyday life in the United States was viewed in terms of contrasting social domains, viewed respectively through the parameters of “contract” and through the parameters of “status.” The contrast between home and marketplace (between family and work), for example, clearly reflected the distinction between status and contract. 12 A. The Paradigmatic Case: The Transformation of the Family That contrast was especially central to Americans’ views of everyday life in the middle decades of the twentieth century. David Schneider’s anthropological study of American kinship, carried out during the middle of the century, revealed the cultural salience of the distinction between status and contract to understandings of and expectations about family relationships. 13 Schneider captured the socio- cultural parameters of the family in the United States just before it began dramatically to merge (as an ideological matter) with the world of work: The set of features which distinguishes home and work is one expression of the general paradigm for how kinship relations should be 10. Id. at 99-100. 11. See, e.g. , JOHN J. HONIGMANN , THE DEVELOPMENT OF ANTHROPOLOGICAL IDEAS 141 (1976) (criticizing ethnographic material on which Maine relied); Peter F. Drucker, The Employee Society , 58 AM. J. SOC . 358, 358-59 (1953) (describing move in modern history from contract to status). 12. See infra notes 14-23 and accompanying text. 13. See DAVID M. SCHNEIDER , AMERICAN KINSHIP : A CULTURAL ACCOUNT 30-54 (1968). 708 HOFSTRA LAW REVIEW [Vol. 35:705 conducted and to what end. These features form a closely interconnected cluster. The contrast between love and money in American culture summarizes this cluster of distinctive features. Money is material, it is power, it is impersonal and unqualified by considerations of sentiment or morality. Relations of work, centering on money, are of a temporary, transitory sort. They are contingent, depending entirely on the specific goal—money. [T]he opposition between money and love is not simply that money is material and love is not. Money is material, but love is spiritual . The spiritual quality of love is closely linked with the fact that in love it is personal considerations which are the crucial ones. Personal considerations are a question of who it is, not of how well they perform their task or how efficient they are. Love is a relationship between persons. 14 Schneider summarized the family in American culture as a social unit of “enduring, diffuse solidarity.” 15 Generally, he explained, “[t]he end to which family relations are conducted is the well-being of the family as a whole and of each of its members.” 16 More particularly, the American family circa mid-twentieth century reflected solidarity in that relationships within the unit were (or were expected to be) “supportive, helpful, and cooperative”; describing family relationships as “diffuse” referred to the absence of a narrow “specific goal or . specific kind of behavior,” and finally, family relationships were expected to “endure”— family cooperation had no “specific goal or . specific limited time in mind.” 17 Moreover, so-called traditional 18 family relationships were grounded in a set of presumed statuses, defined largely through reference to age and gender. 19 Roles followed statuses. 20 Hierarchy was 14. Id . at 48-49. 15. Id. at 50, 52 (emphasis omitted).
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